11-08 415
11-08 415
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served in the Navy (1970–1974) and appealed a January 2010 RO decision denying TDIU; Board remanded in 2013 and later returned the case for decision. Appeal period begins May 26, 2008 (one year before May 26, 2009 claim filing).
- Service-connected disabilities: residuals of left knee injury with osteoarthritis status post total knee replacement (rated 60% for entire appeal period, 100% briefly prior to June 1, 2008), left shoulder motion limitation and distal clavicle resection residuals (each 20%), and noncompensable left knee scarring; combined rating 70% on/after June 1, 2008.
- Employment history: physically demanding work (painter, floor technician); last full-time work March 2006; short/part-time sedentary work July–Dec 2008 and carnival work in 2009.
- Medical evidence: repeated VA exams (2009, 2011, 2016) documenting persistent left knee pain/limited standing/walking, cane and brace use, limited knee flexion/extension, and left shoulder pain/limited ROM; March 2016 examiner found veteran unable to perform physical work and limited for lifting 10–20 lbs but opined sedentary work might be possible (Board questioned practical ability to sustain sedentary work given knee/shoulder limitations).
- SSA granted disability earlier (2006) partly on osteoarthrosis; Board found SSA decision probative but not dispositive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU for the appeal period | Veteran: service-connected knee and shoulder disabilities prevent securing/maintaining substantially gainful employment | VA/RO: implicitly contested sufficiency of unemployability evidence; relied on exam reports that suggested sedentary work possible | Granted: Board awarded TDIU for entire appeal period, resolving reasonable doubt in favor of Veteran |
Key Cases Cited
- Hatlestad v. Brown, 5 Vet. App. 524 (1993) (explains objective/subjective TDIU criteria)
- Bloom v. West, 12 Vet. App. 185 (1999) (weight to medical opinions based on reasoning and record review)
- Collier v. Derwinski, 1 Vet. App. 413 (1991) (SSA disability decision is probative evidence for VA purposes)
- Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (veteran need not prove 100% unemployable to obtain TDIU)
- Van Hoose v. Brown, 4 Vet. App. 361 (1993) (consideration of functional capacity and work experience for TDIU)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule in veterans claims)